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PILLSBURY WINTHROP SHAW PITTMAN LLP


CHRISTINE A. SCHEUNEMAN, #113811
christine.scheuneman@pillsburylaw.com
ELAINE Y. LEE, #293452
elaine.lee@pillsurylaw.com
BENJAMIN E. STRAUSS, #301660
benjamin.strauss@pillsburylaw.com
725 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-5406
Telephone: (213) 488-7100
Facsimile No.: (213) 629-1033
DISABILITY RIGHTS LEGAL CENTER
ELIZABETH EUBANKS # 261489
elizabeth.eubanks@drlcenter.org
320 East D. Street
Ontario, CA 91764
Telephone: (909) 460-2034
Facsimile No.: (909) 460-2094
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
)
J.V. through his guardian ad litem,
ANABEL FRANCO; B.K. through his )
)
guardian ad litem, CYNTHIA
)
BROWN; and all other students
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similarly situated,
)
)
Plaintiffs,
)
)
vs.
)
)
POMONA UNIFIED SCHOOL
)
DISTRICT; POMONA SPECIAL
EDUCATION LOCAL PLANNING )
AREA; ANA PETRO, CHRISTINE )
)
GOENS, KAMERON SHIELDS,
)
BEATRIZ KRIVAN, JENNIFER
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YALES, SELENE AMANCIO,
BRIAN EL MAHMOUD, DANIELLA )
)
SOTO, MARY GARCIA, CINDY
)
GREEN, ELAINE MARKOFSKI,
)
SUPERINTENDENT RICHARD
MARTINEZ in his Official Capacity )
)
only, and DOES 1-10,
)
Defendants. )
)
)

CASE NO. 2:15-cv-007895


CLASS ACTION COMPLAINT
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THE AMERICANS WITH


DISABILITIES ACT OF 1990;
SECTION 504 OF THE
REHABILITATION ACT OF 1973
UNRUH CIVIL RIGHTS ACT;
CALIFORNIA GOVERNMENT
CODE SECTION 11135;
42 U.S.C. SECTION 1983 (4TH
AMENDMENT);
42 U.S.C. SECTION 1983 (DUE TH
PROCESS CLAUSE OF THE 14
AMENDMENT);
42 U.S.C. SECTION 1983 (EQUAL
PROTECTION
CLAUSE OF THE
14TH AMENDMENT);
FALSE IMPRISONMENT;
BATTERY;
ASSAULT;
INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS;
NEGLIGENT SUPERVISION;
NEGLIGENCE;

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(continued from prior page)

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CALIFORNIA EDUCATION
CODE 200, 201, 220, and 260;
ARTICLE I, SECTION 7(A) &
ARTICLE IV, SECTION 16(A) OF
THE CALIFORNIA
CONSTITUTION.

JURY TRIAL DEMANDED

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PLAINTIFFS, J.V. and B.K., through their guardians ad litem, allege as


follows for themselves and all other students similarly situated:
INTRODUCTION

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1.

Plaintiffs submit this claim on behalf of themselves and all other

12

similarly situated students for the violation of their civil rights, battery, assault,

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false imprisonment, intentional infliction of emotional distress, negligent

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supervision, and negligence based upon the Defendants violations of

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California and Federal laws.

16

2.

Plaintiffs are disabled students, who, due to the severity of their

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disabilities were unable to report the abuse they were forced to endure, which

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included but was not limited to battery, assault, false imprisonment, and

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intentional infliction of emotional distress.

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3.

Defendants preyed on plaintiff students because of their

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disabilities, tasked unqualified and inadequately trained staff with supervising

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plaintiff students, failed to document and report incidents of abuse, and failed

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to take reasonable steps to prevent further abuse.

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4.

The abuse has occurred since at least August 2013, and no effort

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has been shown to adequately protect plaintiff students from the continued

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abuse. Defendants carried out a series of abusive acts upon the named

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Plaintiffs and other similarly situated students. Some of these acts are set forth

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herein. Unfortunately, due to the nature of their disabilities, Plaintiffs J.V. and

B.K. are unable to adequately answer questions regarding what happened to

them or describe events which occurred in their classroom.

5.

The harmful effects of the abuse suffered by Plaintiffs at the

hands of the staff directly abusing them have been compounded by all

Defendants willful failure to adequately report, document, respond to, and

prevent the abuse. Even after parents approached Defendants requesting

information about the abuse that would allow them to mitigate their childrens

damages, Defendants failed to provide any meaningful information regarding

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11

what transpired in their childrens classroom.


6.

Plaintiffs timely filed Tort Claims Notices under Government

12

Code section 910 et seq. Defendants rejected the Tort Claims Notice for J.V.

13

on April 15, 2015 and for B.K. on August 13, 2015.

14

7.

The alleged acts and Plaintiffs damages are such that proceeding

15

through due process before the Office of Administrative Hearings would be

16

both futile and inadequate. Plaintiffs injuries cannot be redressed under the

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IDEAs due process procedures.

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8.

Due to both the nature of Plaintiffs disabilities, which preclude

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them from reporting the abusive acts, and the purposeful concealment of the

20

acts by Defendants, Plaintiffs are at this point unable to describe all of the

21

abusive acts directed at Plaintiffs and the exact length of time the abuse was

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endured. Plaintiffs expressly reserve their right to amend this Complaint to

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include additional facts and/or claims as discovery in this case proceeds.


JURISDICTION

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25

9.

This Court has subject matter jurisdiction over this action

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pursuant to 28 U.S.C. sections 1331 and 1367 for claims arising under the

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Americans with Disability Act of 1990, 42 U.S.C. sections 12101, et seq.,

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1343 for claims arising under the United States Constitution, and for claims

arising under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

sections 794, et seq.

10.

Under the doctrine of pendant and supplemental jurisdiction, 28

U.S.C. section 1367, this Court has jurisdiction over Plaintiffs claims arising

under California state law.

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8

11.

pursuant to 28 U.S.C. sections 2201 and 2202.


VENUE

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This Court has jurisdiction to issue a declaratory judgment

12.

Pursuant to 28 U.S.C. section 1391(b), venue is proper in the

11

district in which this Complaint is filed, which is the judicial district in which

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the claims have arisen, the Central District of California.


PARTIES

13
14

13.

Plaintiffs J.V. and B.K. are students with autism who live within

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the school district boundary of the POMONA UNIFIED SCHOOL

16

DISTRICT. Autism is a neurological disorder that presents with persistent

17

deficits in social communication and social interaction across multiple

18

contexts.

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14.

J.V. is a nine year old boy. As a result of his autism, he has a

20

severe impairment in speech and language, perseverative behaviors, insistence

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upon sameness, stereotypy, and impairment in some social behaviors. J.V.

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resides in Pomona, California, with his mother, Anabel Franco (Ms. Franco)

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and stepfather. He is a person with a disability at all times referenced herein

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within the meaning of all applicable state and federal disability non-

25

discrimination laws. This action is brought by Ms. Franco on behalf of J.V.

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27

15.

Plaintiff B.K is a twelve year old young man. As a result of his

autism, he has significant communicative, stereotypical, and adaptive deficits.

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B.K. resides in Pomona, California, with his mother, Cynthia Brown (Ms.

Brown). He is a person with a disability at all times referenced herein within

the meaning of all applicable state and federal disability nondiscrimination

laws. This action is brought by Ms. Brown on behalf of B.K.

16.

Defendant POMONA UNIFIED SCHOOL DISTRICT (the

DISTRICT) and POMONA SPECIAL EDUCATION LOCAL PLANNING

AREA (SELPA) are local government entities within the meaning of Title II

of the ADA, recipients of federal financial assistance within the meaning of

Section 504 of the Rehabilitation Act, and have at least 50 employees. The

10

DISTRICT and SELPA are also the recipients of financial assistance from the

11

State of California. Presently, and at all times relevant to this Complaint, The

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DISTRICT and SELPA were and are business establishments within the

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meaning of the Unruh Civil Rights Act. The DISTRICT and SELPA are sued

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in their own right and on the basis of the acts of their officials, agents, and

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employees.

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17.

Defendant RICHARD MARTINEZ is Superintendent of the

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DISTRICT. The Superintendent accepts responsibility for the general

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efficiency of the school system, including the policies, practices, procedures,

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programs, activities, services, training, and employees of those schools. The

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Superintendent is responsible for the development of the school staff, and for

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the educational growth and welfare of the students, as well as for ensuring

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compliance with state and federal laws. The Superintendent is sued in his

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official capacity.

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18.

Defendant ANA PETRO was or is an instructional aide employed

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by the DISTRICT or SELPA. Defendant PETRO intentionally and unlawfully

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assaulted Plaintiff B.K. for no pedagogical purpose. She is sued in her

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individual and official capacity.

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19.

Defendant CHRISTINE GOENS is the principal of Simons

Middle School. As principal, CHRISTINE GOENS has authority and control

over Simons Middle Schools programs and facilities, including policies,

practices, procedures, programs, activities, services, training, and employees

of those schools. The principal is responsible for ensuring that Simons Middle

School complies with state and federal laws. CHRISTINE GOENS is sued in

her individual and official capacities.

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9

20.

Defendants KAMERON SHIELDS, DOLORES MURILLO, and

BEATRIZ KRIVAN were or are employed by the DISTRICT or SELPA as

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special education teachers. Teachers have authority and control of their

11

classroom, including the policies, practices, procedures, facilities,

12

maintenance, programs, activities, services, training, and employees of those

13

classrooms. The teacher is responsible for ensuring that their classroom

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complies with state and federal laws. Defendants SHIELDS, MURILLO, and

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KRIVAN are sued in their individual and official capacities.

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21.

Defendant JENNIFER YALES was or is employed by THE

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DISTRICT or SELPA as the Director of Special Education. The Director of

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Special Education has authority and control of the special education

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classrooms, including the policies, practices, procedures, facilities,

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maintenance, programs, activities, services, training, and employees of those

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classrooms. The Director of Special Education is responsible for ensuring that

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the DISTRICT schools comply with special education laws. JENNIFER

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YALES is sued in her individual and official capacity.

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22.

Defendant CINDY GREEN was or is employed by the

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DISTRICT or SELPA as a special education coordinator. As a special

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education coordinator, CINDY GREEN was responsible for attending IEP

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Team meetings; developing educational programming, including behavior

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intervention; and reporting to the Director of Special Education. CINDY

GREEN is sued in her individual and official capacity.

23.

Defendant SELENE AMANCIO is the principal of San Antonio

Elementary School. As principal, SELENE AMANCIO has authority and

control over San Antonio Elementary School programs and facilities,

including policies, practices, procedures, programs, activities, services,

training, and employees of those schools. The principal is responsible for

ensuring that San Antonio Elementary School complies with state and federal

laws. SELENE AMANCIO is sued in her individual and official capacity.

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24.

Defendant DANIELLA SOTO and Defendant MARY GARCIA

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were or are instructional aides employed by the DISTRICT or SELPA who

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intentionally and unlawfully restrained Plaintiff J.V. for no pedagogical

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purpose. DANIELLA SOTO and MARY GARCIA are sued in their individual

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and official capacities.

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25.

Defendant BRIAN EL MAHMOUD was or is a classroom aide

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employed by the DISTRICT or SELPA. EL MAHMOUD participated

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substantially in the events described herein against Plaintiff J.V. He is being

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sued in his individual and official capacity.

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26.

Defendant ELAINE MARKOFSKI was or is a health services

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assistant employed by the DISTRICT or SELPA. Defendant MARKOFSKI

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knowingly and purposefully participated in covering up the abuse of students

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by failing to document all injuries. Defendant MARKOFSKI is being sued in

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her individual and official capacity.

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27.

The names and capacities, whether individual, corporate,

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otherwise, sued herein as DOES 1-10, inclusive, are presently unknown, and

26

Plaintiffs will amend the Complaint to insert them when ascertained.

27

Plaintiffs are informed and believe and thereon allege that each of these

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Defendants was a resident of this District and/or has principal offices or was

doing business in this District and was and is responsible in some way for the

events and damages alleged in this Complaint.

28.

Plaintiffs are informed and believe that each of the Defendants is

the agent, ostensible agent, alter ego, master, servant, trustor, trustee,

employer, employee, representative, affiliate, related entity, partner, and/or

associate, or such similar capacity, of each of the other Defendants, and at all

times acting and performing, or failing to act or perform, within the course and

scope of each similar aforementioned capacities, and with the authorization,

10

consent, permission or ratification of each of the other Defendants, and is

11

personally responsible in some manner for the acts and omissions of the other

12

Defendants in proximately causing the violations and damages complained of

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herein, and have participated, directed, and have ostensibly and/or directly

14

approved or ratified each of the acts or omissions of each of the other

15

Defendants, as herein described.

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17

29.

Hereafter, references to Defendants shall include Paragraphs

16-28, inclusive, above.


FACTUAL ALLEGATIONS

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30.

Plaintiffs incorporate, by reference herein, the allegations in

paragraphs 1 through 29, as though fully set forth herein.


31.

Defendants committed several acts against Plaintiffs J.V. and

B.K. throughout the time period of August 2013 to present.


32.

Defendants failed to adequately document these acts, failed to

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adequately report these acts, and failed to take reasonable steps to prevent

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further abuse.

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Class Representative J.V.

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2

33.

From August 2011 to October 2014, Plaintiff J.V. attended San

Antonio Elementary School (San Antonio), in an Autism Spectrum and

Related Disorders (ASRD) class, which is a classroom designed

exclusively for students with disabilities.

34.

Prior to entering the ASRD class, J.V.s individualized education

plans (IEPs) indicated that he was very sweet and that his behaviors did

not impede his learning.

35.

Within the first month of attending San Antonio, J.V. came home

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with unexplained injuries, such as a black eye. Shortly thereafter, J.V.s

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behaviors began to change, becoming more aggressive.

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36.

To address this change in behavior, on January 24, 2012, a mere

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four months after starting at San Antonio, Defendants developed a behavior

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intervention plan to explicitly include that J.V. should be restrained, stating

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that the staff should apply physical blocking if aggression is towards other

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students or staff. In January 2013, this plan was updated to state: If [J.V.s]

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aggression is directed toward another student, adults may move the other

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student to prevent injury. This procedure was in place for the remainder of

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the time J.V. was enrolled at San Antonio.

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37.

During the 2011-2012 and 2012-2013 school years, Ms. Franco

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repeatedly contacted J.V.s teacher, Ms. Murillo, the SELPA representatives,

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Patti Adams and Debbie Montoya, and his principals, Ms. Amancio and Ms.

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Ana Rico, raising concerns about his injuries and behavior changes, but the

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DISTRICT and SELPA refused to provide J.V. with additional support. As a

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result, on or about May 24, 2013, Ms. Franco filed a due process request with

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the Office of Administrative Hearings. Shortly thereafter, Ms. Franco and the

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DISTRICT entered into an agreement in which the DISTRICT agreed to

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provide J.V. with a full time, one to one behavior aide, through an outside

agency, Autism Spectrum Therapies (AST), beginning on August 15, 2013.

AST is a private agency that provides individualized behavior intervention and

Applied Behavior Analysis therapy for individuals with autism.

38.

Notwithstanding, J.V. continued to sustain a series of serious

injuries during the 2013-2014 school year. Although these injuries left visible

marks, bruises, and scratches, Defendants frequently failed to notify

Ms. Franco that J.V. had been injured. When Ms. Franco contacted

Defendants to ask how the injury occurred, they responded that they did not

10
11

know. These injuries include:


a. On or about April 27, 2014, J.V. came home with multiple bruises
and a puncture wound on his back.

12
13

b. On or about May 17, 2014, J.V. came home with a swollen lip.

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c. On or about August 29, 2014, J.V. came home with multiple bruises
on his thigh and a bruise on his ankle the size of an egg.

15
16

39.

In addition, Ms. Franco received a series of notifications that

17

contained vague information about injuries J.V. sustained at school, which

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none of the staff from the DISTRICT or SELPA could explain to Ms. Franco.

19

For instance, on August 29, 2013, Ms. Franco received a Parent Notification

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from Ms. Markofski that J.V. had a scratch on face; and on November 5,

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2013, Ms. Franco received notice from Ms. Markofski that J.V. had sustained

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a head injury while at school.

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40.

When Ms. Franco asked J.V. how he got hurt, J.V. sometimes

24

replied Mr. Brian, the name of one of the classroom aides. Ms. Franco

25

attempted to get further information from J.V., but given his limited

26

communication abilities, he could not explain. Ms. Franco notified Ms.

27

Murillo that J.V. had stated that he was injured because of Mr. Brian [El

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Mahmoud], but she disregarded this concern, replying that she didnt know

what J.V. meant.

41.

Ms. Franco made regular attempts to discuss J.V.s injuries with

Ms. Murillo, Ms. Krivan, Ms. Amancio, and the classroom aides Daniella

Soto, Brian El Mahmoud, and Maria Garcia. These Defendants failed to

provide an explanation, and frequently suggested his injuries were merely the

result of J.V. being clumsy.

42.

When these attempts were not effective, Ms. Franco contacted the

SELPA administrators, Patti Adams, Cindy Green, or Jennifer Yales directly.

10

Occasionally, upon noticing an injury, Ms. Franco went to the SELPA offices

11

to discuss her concerns with the SELPA staff in person.

12

43.

Coinciding with his unexplained injuries, J.V.s behavior

13

continued to become increasingly aggressive, eventually reaching the point of

14

physical aggression and property destruction. Specifically, his incidences of

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aggression increased from seven times per day in January 2012 to 2.25 times

16

per hour in January 2013 and went from mild in January 2013 to moderate

17

in January 2014, with J.V. exhibiting aggressive behavior sometimes as often

18

as fifteen times per hour. In a conversation with Ms. Amancio on or about

19

January 14, 2014, Ms. Amancio stated that the other students had to be

20

removed from class daily due to J.V.s behaviors.

21

44.

Ms. Franco also raised concerns about J.V.s safety and behaviors

22

at multiple IEP Team meetings, which were attended by Ms. Murillo, Ms.

23

Krivan, Ms. Amancio, and SELPA staff Ms. Adams, Ms. Green, or Ms. Yales.

24

For instance, at J.V.s 2014 annual IEP, Ms. Franco presented a letter she had

25

previously written that stated [J.V.] has been a part of Mrs. Murillos class

26

for the last three school years. During this time we have experience (sic) many

27

challenges, a couple of major challenges being [J.V.s] physical safety and

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challenging behaviors. She went on to raise concern about the lack of

communication, stating We have experienced a lack of communication

among the team that has resulted in delaying appropriate intervention . . . we

have requested incident reports for aggressive behaviors resulting in

evacuating his peers out of the classroom, we are yet to receive those.

45.

As a result of her concerns related to J.V.s repeated injuries, his

regression in behavior, and Defendants failures to adequately address the

situation, Ms. Franco requested an assessment by an outside evaluator,

Marjorie Charlop, Ph.D. On or about April 20, 2014, Dr. Charlop provided

10

Defendants with a Functional Behavior Analysis Assessment Report in

11

which she concluded that Defendants behavior intervention program was

12

being implemented in such a way that it was maintaining and reinforcing

13

J.V.s noncompliant behaviors. She warned Defendants when behavior is

14

reinforced, it will increase and occur more frequently, and most likely escalate

15

to larger incidences.

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46.

The results of this evaluation were shared at an IEP Team

17

meeting that was convened on or about September 30, 2014, attended by

18

Ms. Green, Ms. Murillo, and Ms. Amancio.

19

47.

On or about August 7, 2014, Defendants finally responded to Ms.

20

Francos concerns through a letter from Jennifer Yales, stating it is the

21

Districts position that [J.V.s] physical safety is being appropriately addressed

22

during the school day as provided by law . . . It appears you are requesting a

23

different one-to-one aide based on your belief [J.V.s] current aide is not

24

ensuring [J.V.s] safety in his educational environment. It is the Districts

25

position that it has offered [J.V.] appropriate paraprofessional support

26

throughout his school day. In response to Ms. Francos concerns related to

27

communication, Ms. Yales wrote the District has provided you all requested

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incident reports in its possession related to [J.V.s] aggressive behaviors as

provided by law.

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4
5

48.

Following receipt of this letter, the classroom aides were

instructed not to speak directly to Ms. Franco.


49.

On or about October 2, 2014, when Ms. Franco picked J.V. up

from school, Ms. Krivan told Ms. Franco that J.V. had lost a tooth during the

school day. Ms. Franco was puzzled by this because J.V. did not have any

loose teeth. Ms. Krivan told her that Ms. Markofski had checked him and that

his mouth was still bleeding. Ms. Krivan gave Ms. Franco the tooth, which

10
11

was cracked.
50.

Later that day, after Ms. Franco left the school, Ms. Krivan called

12

and stated that she had forgotten to tell her that J.V. had to be restrained that

13

day. Ms. Franco asked for information regarding what had occurred, but Ms.

14

Krivan was unable to explain, stating that she was not present when it

15

occurred as she had been assisting another student at the time. She told Ms.

16

Franco that there would be an incident report placed in J.V.s backpack the

17

following day that would provide her with the details.

18

51.

Defendants failed to provide the promised written report on

19

October 3, 2014. Over the next two weeks, Ms. Franco repeatedly contacted

20

Ms. Krivan, Ms. Amancio, Ms. Green, and Ms. Yales in person, by email, and

21

by telephone.

22

52.

On or about October 17, 2014, 15 days after she was first

23

informed J.V. was restrained, Ms. Franco met with Ms. Krivan, a program

24

supervisor from AST, and a speech and language pathologist who worked for

25

Defendants. Prior to this meeting, Ms. Franco had assumed that J.V. was

26

restrained by his assigned behavior aide from AST. During this October 17

27

meeting, however, Defendants told her that J.V. had not been restrained by his

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AST aide. When Ms. Franco asked who restrained him, she was told that

everything was written in the report, which she would receive shortly.

53.

On or about October 20, 2014, J.V. came home from school with

multiple bruises on his back along his rib cage. Ms. Franco texted pictures of

the injuries to the DISTRICT nurse. The nurse promised to follow up on the

injuries, however, no one at the school could explain how J.V. was injured.

54.

On or about October 21, 2014, Ms. Franco finally received a

written report regarding the incident on October 2, 2014. This report was not

created by the DISTRICT, but instead was drafted by AST. The report stated

10

that two classroom aides held Cxs arms and legs down while area was

11

cleared of students and chairs. Speech therapist instructed them to stop

12

because they were using an incorrect CPI hold on student.

13

55.

There is no documentation in any of the DISTRICTs or

14

SELPAs records that a restraint, illegal or otherwise, was used on J.V. on

15

October 2, 2014.

16

56.

Following receipt of the written report, Ms. Franco requested a

17

copy of all records from the health assistant. When she received these records,

18

she contacted Ms. Markofski to inform her that she had not documented that

19

she saw J.V. on October 2, 2014. Ms. Markofski stated she had not

20

documented it because J.V. did not come to her office, but instead she went to

21

his classroom. Upon Ms. Francos request, Ms. Markofski finally added it to

22

her records.

23

57.

The events that occurred while attending San Antonio have had a

24

significant impact on J.V. In November 2014, J.V. was placed on mental

25

health medication to address his anxiety.

26
27
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58.

Plaintiffs believe that further instances of abuse occurred and that

further investigation is necessary to determine the full extent of both the abuse

and injuries.
Class Representative B.K.

4
5

59.

From August 2013 to March 2015, Plaintiff B.K. attended

Simons Middle School (Simons) in a special education classroom

exclusively attended by students with disabilities. During this entire period,

Kameron Shields was the classroom teacher and, until the incident on

March 5, 2015, Ana Petro was a classroom aide.

10
11
12

60.

When Ms. Brown was first introduced to Ana Petro, Mr. Shields

told her that Ms. Petro does not take any stuff from B.K.
61.

Shortly after beginning at Simons, Ms. Brown began to notice

13

that B.K. was regressing in previously acquired skills, such as writing. He also

14

began to exhibit uncharacteristic behaviors. For instance, Mr. Shields called

15

home, sometimes multiple times per week, to inform Ms. Brown that B.K. had

16

been crying at school. B.K. would cry when he arrived at school on the bus,

17

but not when Ms. Brown dropped him off. B.K. also began to have toileting

18

accidents at school that necessitated the classroom aides to clean him,

19

whereas he was able to toilet independently at home.

20

62.

The school nurse also began to call Ms. Brown periodically to

21

notify her that B.K. had scratches on his face and neck. Plaintiffs have

22

repeatedly sought documentation regarding these incidents, but Defendants

23

have failed to provide any documentation to date.

24

63.

In or about November 2014, Ms. Brown noticed that B.K. would

25

flinch and move away from other people when they got close, as if he was

26

anticipating getting hurt. Shortly thereafter, in or about December 2014, B.K.

27
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began to exclaim Red Face! if he thought he was in trouble or anticipated a

punishment.

64.

These new behaviors were concerning enough to Ms. Brown that

she brought them to the attention of the IEP Team, including Mr. Shields, on

February 24, 2015. Mr. Shields, the DISTRICT, and SELPA ignored these

concerns and took no actions to address them.

65.

On March 5, 2015, B.K. arrived home from school with a red

mark on his face and swelling on his right knee. Several hours later, at

approximately 5:00 p.m., Ms. Brown received a call from Simons Principal,

10

Christine Goens, that two students had reported that B.K. had been pushed and

11

slapped by a classroom aide. Ms. Goens informed Ms. Brown that the police

12

had been notified.

13

66.

Other than this brief information, Ms. Goens was not able or

14

willing to provide any additional detail. In a home-school communication log

15

that Ms. Brown received that day, Mr. Shields merely wrote No school

16

tomorrow, have a great weekend.

17

67.

Following this incident, Ms. Brown requested a copy of B.K.s

18

cumulative file, however, Ms. Goens told her that B.K.s file had been lost,

19

and she would have to make it up.

20

68.

On March 17, 2015, Ms. Brown attended an IEP Team meeting,

21

and requested information regarding the March 5 incident. In response, the

22

DISTRICT and SELPA staff, including Mr. Shields, Ms. Goens, and Tammie

23

Herring-Wilson (a SELPA administrator), stated that pending the

24

investigation, information could not be disclosed.

25

69.

Following his return to school after March 5, B.K. exhibited a

26

significant change in behaviors. For the first time during the entirety of the

27

2014-2015 school year, Mr. Shields began to send home reports that B.K.

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was trying to hit staff and that he was not keeping his hands to himself.

Upon receipt of these reports, Ms. Brown went to the school to observe B.K.s

behaviors; however, she was not immediately permitted to go to the classroom

and was made to sit in the office. Shortly thereafter, she removed B.K. from

Simons.

70.

On April 20, 2015, Ms. Brown attended an IEP Team meeting,

and requested information about what had happened to B.K. on March 5. The

DISTRICT staff, including Ms. Goens and Mr. Shields responded that they

would not respond to questions about the incident in an IEP meeting.

10

71.

On June 4, 2015, Ms. Brown attended an IEP Team meeting, and

11

again requested information about the March 5 incident. Again, the

12

DISTRICT and SELPA staff, including Ms. Yales, Ms. Herring-Wilson,

13

Ms. Goens, and Mr. Shields, responded that they could not provide

14

information pending the police investigation.

15

72.

On July 14, 2015, Ms. Brown sent a request for records to the

16

Pomona Police Department seeking a copy of the March 5, 2015 police report,

17

which she received approximately a month later. It was upon receipt of this

18

police report that Ms. Brown, for the first time, was provided with details

19

regarding B.K.s injuries.

20

73.

According to the police report, between 1:00 p.m. and 2:00 p.m.,

21

two general education students were walking to their physical education class

22

when they passed an open special education classroom and saw Ana Petro

23

push B.K. against the wall and slap him in his face. Ana Petro saw the students

24

and smiled at them.

25
26

74.

To date, Ms. Brown has yet to receive any documentation from

the DISTRICT or SELPA regarding what occurred on March 5, 2015.

27
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75.

The events that occurred while at Simons have had a significant

impact on B.K. For the first time in his life, he is on mental health medication.

He regularly wakes up in the middle of the night, and refuses to go back to

sleep. He has been prescribed Benadryl to aid his sleep.

76.

Plaintiffs believe that further instances of abuse occurred and that

further investigation is necessary to determine the full extent of both the abuse

and injuries.
CLASS ALLEGATIONS

8
9

77.

Plaintiffs J.V. and B.K, bring this action on their own behalf and

10

on behalf of all persons similarly situated. The class which Plaintiffs represent

11

is composed of all students with disabilities attending school in Pomona

12

Unified School District since August 2013 who have been denied their right to

13

full and equal access to, and use and enjoyment of, the facilities, programs,

14

services, and activities of the Pomona Unified School District because of

15

abusive conduct towards children with disabilities.

16

78.

The persons in the class are so numerous that joinder of all such

17

persons is impractical and the disposition of their claims in a class action is a

18

benefit to the parties and to the Court.

19

79.

There is a well-defined community of interest in the questions of

20

law and fact involved affecting the parties to be represented in that they were

21

all denied their civil right to full and equal access to, and use and enjoyment

22

of, the facilities, programs, services, and activities offered by the public

23

schools operated by Defendants due to Defendants abusive conduct towards

24

children with disabilities.

25

80.

Common questions of law and fact predominate.

26
27
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81.

The claims of Plaintiffs J.V. and B.K. are typical of those of the

class and Plaintiffs J.V. and B.K will fairly and adequately represent the

interests of the class.

4
5
6

82.

References to Plaintiffs shall be deemed to include the named

Plaintiffs and each member of the class.


83.

Defendants have failed to adequately supervise their employees

which resulted in the foreseeable physical harm to Plaintiffs. Under California

Law, Defendants had a statutory duty to ensure that staff who came into

contact with Plaintiffs would provide an environment free of abuse and

10
11

neglect.
84.

California law has long imposed on school authorities a duty to

12

supervise at all times the conduct of children on school grounds and to enforce

13

those rules and regulations necessary for their protection. Defendants also had

14

a duty to use reasonable measures to protect students from foreseeable injury

15

at the hands of third parties acting intentionally or negligently. The school

16

district is liable for injuries which result from a failure of its officers and

17

employees to use ordinary care in these respects.

18

85.

Defendants have violated their statutory duties to Plaintiffs,

19

including their supervisory duties created under California Education Code

20

sections 44807 and 44808.

21

86.

Defendants have violated their statutory duties to Plaintiffs,

22

including their supervisory duties under Welfare and Institutions Code section

23

15630, et seq. which required them to report any incident that reasonably

24

appears to be physical abuse to the adult protective service agency or local law

25

enforcement agency immediately or as soon as was practicably possible and

26

file a written report within two days. They also violated their duties under

27

California Penal Code section 11166 which required them to report any

28

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knowledge of a child whom the mandated reporter knows or reasonably

suspects has been the victim of child abuse or neglect to the agency

immediately or as soon as is practically possible by telephone and the

mandated reporter shall prepare and send, fax, or electronically transmit a

written follow up report thereof within 36 hours of receiving the information

concerning the incident.

87.

Defendants have violated their statutory duties to Plaintiffs,

including multiple violations of California Education Code sections 56521.1

and 56521.2 which in pertinent part prohibits the use of any interventions that:

10

1) cause physical pain; 2) simultaneously immobilize all four extremities, 3)

11

apply an amount of force that exceeds that which is reasonable and necessary

12

under the circumstances, or 4) subjects the individual to verbal abuse, ridicule,

13

or humiliation, or that can be expected to cause excessive emotional trauma.

14

88.

Defendants have violated their statutory duty under California

15

Penal Code section 11165.4 which prohibits unlawful corporal punishment or

16

injury against a child, defined as any cruel or inhuman corporal punishment

17

or injury resulting in a traumatic condition.

18

89.

Defendant Richard Martinez violated his statutory duty under

19

California Education Code section 260 by failing to enact an adequate formal

20

or informal policy to ensure that the DISTRICT and SELPA are providing a

21

learning environment free from discrimination based on the characteristics

22

provided in California Education Code section 220, specifically disability.

23
24

90.

Defendants continue to employ many of those responsible for the

abuse outlined herein.

25
26
27
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FIRST CLAIM FOR RELIEF


(Violation of 42 U.S.C. 12101, et seq.
Against the DISTRICT, SELPA, and DOES 1-10)

1
2
3
4
5
6

91.

Plaintiffs incorporate, by reference herein, the allegations in

paragraphs 1 through 90, as though fully set forth herein.


92.

Defendants acts and omissions alleged herein are in violation of

the Americans with Disabilities Act, 42 U.S.C. sections 12101, et seq., and the

regulations promulgated thereunder 28 C.F.R. Part 35, et seq.

93.

Defendants conduct described herein violated the ADA, in that

10

Plaintiff students, who are students with disabilities, are either not provided

11

programs, services, and activities that are provided to non-disabled students,

12

or are provided programs, services, and activities that are not equal to, and are

13

inferior to, the services provided to students who are not physically disabled.

14

Plaintiff students in fact were abused because of their disabilities, which

15

amounts to disability discrimination. Defendants have demonstrated a

16

deliberate indifference that harm to Plaintiffs federally protected rights under

17

the ADA was substantially likely, and failed to act upon that likelihood.

18

94.

Defendants conduct violated and continues to violate the ADA

19

and unless restrained from doing so, Defendants will continue to violate the

20

ADA. Defendants conduct, unless enjoined, will continue to inflict injuries

21

for which Plaintiffs have no adequate remedy at law.

22

95.

Consequently, Plaintiffs are entitled to injunctive relief pursuant

23

to Section 308 of the ADA (42 U.S.C. section 12188). As a proximate cause of

24

the actions of Defendants herein, Plaintiffs are also entitled to a Declaration

25

that Defendants actions or omissions violate Plaintiffs rights under the ADA,

26

Damages according to proof, Plaintiffs reasonable attorneys fees, Plaintiffs

27
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costs of suit incurred herein, and such other and further relief as the Court

deems just and proper.

SECOND CLAIM FOR RELIEF

(Violation of 29 U.S.C. 794, et seq. - Against

the DISTRICT, SELPA, and DOES 1-10)

6
7
8

96.

Plaintiffs incorporate, by reference herein, the allegations in

paragraphs 1 through 95, as though fully set forth herein.


97.

Defendants acts and omissions described herein have resulted in

unequal access to the facilities, programs, services, and activities provided by

10

Defendants as alleged herein in violation of 29 U.S.C. section 794, et seq., the

11

Rehabilitation Act of 1973, and the regulations promulgated thereunder, 34

12

C.F.R. Pt. 104, et seq.

13
14
15
16
17

98.

Defendants are the recipients of federal funds or an

instrumentality of DISTRICT sufficient to invoke the coverage of Section 504.


99.

Defendants unlawfully discriminated against Plaintiffs on the sole

basis of disability.
100. Defendants have demonstrated a deliberate indifference that harm

18

to Plaintiffs federally protected rights under 29 U.S.C. 794, et seq. was

19

substantially likely, and failed to act upon that likelihood.

20

101. Plaintiffs J.V. and B.K. are qualified individuals with disabilities.

21

102. Solely by reason of their disabilities, Plaintiffs have been

22

excluded from participation in, denied the benefit of, and subjected to

23

discrimination in their attempts to receive full and equal access to the

24

facilities, programs, services, and activities offered by Defendants.

25

103. As a proximate cause of the actions of Defendants herein,

26

Plaintiffs are entitled to an order and judgment enjoining Defendants from

27

violating Plaintiffs rights under 29 U.S.C. 794, et seq., a Declaration that

28

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Defendants actions or omissions violate Plaintiffs rights under 29 U.S.C.

794, et seq., Damages according to proof, Plaintiffs reasonable attorneys

fees, Plaintiffs costs of suit incurred herein, and such other and further relief

as the Court deems just and proper.

THIRD CLAIM FOR RELIEF


(Violation of California Civil Code 51, et seq. - Against the DISTRICT,
SELPA, PETRO, GOENS, SHIELDS, KRIVAN, MURILLO, GREEN,
YALES, AMANCIO, EL MAHMOUD, SOTO, GARCIA, MARKOFSKI, in
his Official Capacity only, MARTINEZ, and DOES 1-10).

104. Plaintiffs incorporate, by reference herein, the allegations in

5
6
7

10
11

paragraphs 1 through 103, as though fully set forth herein.


105. Defendants actions described herein have violated and continue

12

to violate the Unruh Civil Rights Act, California Civil Code sections 51, et

13

seq., in that Plaintiffs, who are students with disabilities, are either not

14

provided programs, services, and activities that are provided to non-disabled

15

students, or are provided programs, services, and activities that are not equal

16

to, and are inferior to, the services provided to students that are not physically

17

disabled. Plaintiffs in fact were abused because of their disabilities, which

18

amounts to disability discrimination.

19
20

106. Defendants DISTRICT and SELPA are business establishments


in the State of California as required by California Civil Code 51(b).

21

107. Defendants have committed additional violations of the Unruh

22

Civil Rights Act in that the conduct alleged herein constitutes a violation of

23

various provisions of the Americans with Disabilities Act, 42 U.S.C. sections

24

12101, et seq., as set forth above.

25

108. Defendants actions were and are in violation of the Unruh Civil

26

Rights Act, California Civil Code sections 51, et seq., and therefore Plaintiffs

27

are entitled to injunctive relief.

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1
2
3

109. The actions of the Defendants were the product of joint action
between public entities and individual employees.
110. In addition, Defendants are liable to Plaintiffs for each and every

offense for actual damages and multiple damages of up to three times the

actual damages incurred but in no case less than $4000 per offense pursuant to

California Civil Code section 52.

7
8
9

111. Plaintiffs are also entitled to reasonable attorneys fees and costs.
FOURTH CLAIM FOR RELIEF
(Violation of California Government Code 11135, et seq.
Against the DISTRICT, SELPA, and DOES 1-10)

10
11
12
13
14

112. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 111, as though fully set forth herein.
113. Plaintiffs are individuals with disabilities within the meaning of
Section 11135(c) of the California Government Code.

15

114. Defendants receive financial assistance from the State of

16

California sufficient to invoke the coverage of Sections 11135, et seq., of the

17

California Government Code.

18

115. Defendants employ more than fifty employees.

19

116. By its actions or inactions in refusing on the basis of disability to

20

provide Plaintiffs full and equal access to the facilities, programs, services,

21

and activities of the District, Defendants have denied Plaintiffs rights under

22

Sections 11135, et seq., of the California Government Code and the

23

regulations promulgated thereunder.

24

117. Plaintiffs have no adequate remedy at law. Unless the relief

25

requested herein is granted, Plaintiffs will suffer irreparable harm in that, on

26

the basis of disability, they will once again be discriminated against and

27
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denied full and equal access to Defendants facilities, programs, services, and

activities.

118. As a proximate cause of the actions of Defendants herein,

Plaintiffs are entitled to an order and judgment enjoining Defendants from

violating Plaintiffs rights under California Government Code 11135, et

seq., a Declaration that Defendants actions or omissions violate Plaintiffs

rights under California Government Code 11135, et seq., Damages

according to proof, Plaintiffs reasonable attorneys fees, Plaintiffs costs of

suit incurred herein, and such other and further relief as the Court deems just

10
11
12
13
14

and proper.
FIFTH CLAIM FOR RELIEF
(Violation of 42 U.S.C. Section 1983 - Fourth Amendment to the United
States Constitution - Against PETRO, GOENS, SHIELDS, MURILLO,
GREEN, EL MAHMOUD, SOTO, GARCIA, YALES, AMANCIO,
KRIVAN, the DISTRICT, SELPA, in his Official Capacity only,
MARTINEZ, and DOES 1-10)

15
16
17
18

119. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 118, as though fully set forth herein.
120. Defendants actions described herein constituted a seizure that

19

was objectively unreasonable under the circumstances and objectively

20

unreasonable in light of the educational objectives Defendants were trying to

21

achieve, in violation of the Fourth Amendment to the United States

22

Constitution.

23

121. Defendants the DISTRICT and SELPA, as state actors for

24

purposes of section 1983, and Defendants El MAHMOUD, SOTO, GARCIA,

25

and PETRO, as employees of the DISTRICT and/or SELPA, acted under the

26

color of state law.

27
28

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122. Defendants YALES, AMANCIO, GOENS, SHIELDS,

MURILLO, GREEN, and KRIVAN are liable as supervisors because the

actions described herein constituted culpable action or inaction in the training,

supervision, and control of subordinates, acquiescence in the constitutional

deprivation after a complaint was made, and showed a reckless or callous

indifference to the rights of the Plaintiffs.

123. Defendants the DISTRICT and SELPA, as state actors for

purposes of section 1983, and Defendants YALES, AMANCIO, GOENS,

SHIELDS, MURILLO, GREEN, and KRIVAN, as employees of the

10
11

DISTRICT and/or SELPA, acted under the color of state law.


124. As a proximate cause of the actions of Defendants herein,

12

Plaintiffs are entitled to an order and judgment enjoining Defendants from

13

violating Plaintiffs rights under the Fourth Amendment to the Constitution of

14

the United States, a Declaration that Defendants actions or omissions violate

15

Plaintiffs rights under the Fourth Amendment to the Constitution of the

16

United States, Damages according to proof, Punitive Damages (from

17

individual Defendants only), Plaintiffs reasonable attorneys fees, Plaintiffs

18

costs of suit incurred herein, and such other and further relief as the Court

19

deems just and proper.

20
21
22
23

SIXTH CLAIM FOR RELIEF


(Violation of 42 U.S.C. Section 1983- Due Process Clause of the Fourteenth
Amendment to the United States Constitution - Against Defendants PETRO,
GOENS, SHIELDS, EL MAHMOUD, SOTO, GARCIA, YALES,
AMANCIO, KRIVAN, MURILLO, GREEN, the DISTRICT, SELPA,
MARTINEZ in his Official Capacity only, and DOES 1-10).

24
25
26

125. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 124, as though fully set forth herein.

27
28

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126. Defendants actions described herein constituted egregious

conduct in the form of excessive or brutal use of physical force in violation of

Plaintiffs Substantive Due Process rights under the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

127. Defendants actions described herein constituted force that was

excessive, unjustified, and malicious, in violation of Plaintiffs Substantive

Due Process rights under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.

128. Defendants the DISTRICT and SELPA, as state actors for

10

purposes of section 1983, and Defendants El MAHMOUD, SOTO, GARCIA,

11

and PETRO, as employees of the DISTRICT and/or SELPA, acted under the

12

color of state law.

13

129. Defendants YALES, AMANCIO, GOENS, SHIELDS,

14

MURILLO, GREEN and KRIVAN are liable as supervisors because the

15

actions described herein constituted culpable action or inaction in the training,

16

supervision, and control of subordinates, acquiescence in the constitutional

17

deprivation after a complaint was made, and showed a reckless or callous

18

indifference to the rights of the Plaintiffs.

19

130. Defendants the DISTRICT and SELPA, as state actors for

20

purposes of section 1983, and Defendants YALES, AMANCIO, GOENS,

21

SHIELDS, and KRIVAN, as employees of the DISTRICT and/or SELPA,

22

acted under the color of state law.

23

131. As a proximate cause of the actions of Defendants herein,

24

Plaintiffs are entitled to an order and judgment enjoining Defendants from

25

violating Plaintiffs rights to substantive due process under the Constitution of

26

the United States, a Declaration that Defendants actions or omissions violate

27

Plaintiffs rights to substantive due process under the Constitution of the

28

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United States, Damages according to proof, Punitive Damages (from

individual Defendants only), Plaintiffs reasonable attorneys fees, Plaintiffs

costs of suit incurred herein, and such other and further relief as the Court

deems just and proper.

SEVENTH CLAIM FOR RELIEF


(Violation of 42 U.S.C. Section 1983 - Violation of the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution
Against Defendants PETRO, GOENS, SHIELDS, El MAHMOUD, SOTO,
GARCIA, YALES, AMANCIO, KRIVAN, MURILLO, GREEN, the
DISTRICT, SELPA, MARTINEZ, in his Official Capacity only, and
DOES 1-10).

10

132. Plaintiffs incorporate, by reference herein, the allegations in

5
6
7
8

11
12

paragraphs 1 through 131, as though fully set forth herein.


133. Defendants actions described herein have violated and continue

13

to violate the Equal Protection Clause of the Fourteenth Amendment to the

14

United States Constitution, in that Plaintiffs, who are students with disabilities,

15

are either not provided programs, services, and activities that are provided to

16

non-disabled students, or are provided programs, services, and activities that

17

are not equal to, and are inferior to, the services provided to students are not

18

physically disabled.

19

134. Defendants actions described herein have violated and continue

20

to violate the Equal Protection Clause of the Fourteenth Amendment to the

21

United States Constitution, in that Plaintiff students were abused and continue

22

to be exposed to potential abuse because of their disabilities, which amounts to

23

disability discrimination.

24

135. Defendants the DISTRICT and SELPA, as state actors for

25

purposes of section 1983, and Defendants El MAHMOUD, SOTO, GARCIA,

26

and PETRO, as employees of the DISTRICT and/or SELPA, acted under the

27

color of state law.

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136. Defendants YALES, AMANCIO, GOENS, SHIELDS,

MURILLO, GREEN, and KRIVAN are liable as supervisors because the

actions described herein constitute culpable action or inaction in the training,

supervision, and control of subordinates, acquiescence in the constitutional

deprivation after a complaint was made, and showed a reckless or callous

indifference to the rights of the Plaintiffs.

137. Defendants the DISTRICT and SELPA, as state actors for

purposes of section 1983, and Defendants YALES, AMANCIO, GOENS,

SHIELDS, MURILLO, GREEN, and KRIVAN, as employees of the

10
11

DISTRICT and/or SELPA, acted under the color of state law.


138. As a proximate cause of the actions of Defendants herein,

12

Plaintiffs are entitled to an order and judgment enjoining Defendants from

13

violating Plaintiffs rights to equal protection under the Constitution of the

14

United States, a Declaration that Defendants actions or omissions violate

15

Plaintiffs rights to equal protection under the Constitution of the United

16

States, Damages according to proof, Punitive Damages (from individual

17

Defendants only), Plaintiffs reasonable attorneys fees, Plaintiffs costs of suit

18

incurred herein, and such other and further relief as the Court deems just and

19

proper.

20
21

EIGHTH CLAIM FOR RELIEF


(False Imprisonment - Against Defendants SOTO, GARCIA,
the DISTRICT, SELPA, and DOES 1-10)

22
23
24
25

139. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 138, as though fully set forth herein.
140. Defendants SOTO and GARCIA intentionally and unlawfully

26

exercised force or the implied threat of force to restrain or confine Plaintiffs

27

when they committed the acts described herein.

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141. The unlawful restraint of J.V. lasted for an appreciable amount of

1
2

time.

142. Plaintiffs did not consent to Defendants SOTO and GARCIAs

acts and as a result of the acts, Plaintiffs suffered harm and severe emotional

distress.

143. California Government Code section 820 states that a public

employee is liable for injury caused by his act or omission to the same extent

as a private person.

144. California Government Code section 815.2 states that a public

10

entity is liable for injury proximately caused by an act or omission of an

11

employee of the public entity within the scope of his or her employment.

12
13
14

145. The DISTRICT and/or SELPA, public entities, were at all


relevant times the employer of Defendants SOTO and GARCIA.
146. Defendants SOTO and GARCIA committed the acts described

15

herein while acting within the scope of their employment with the DISTRICT

16

and/or SELPA of educating, disciplining, and supervising Plaintiffs.

17

147. The DISTRICT and SELPA are therefore vicariously liable for

18

the actions of its employees acting within the scope of their employment.

19

148. As a direct and proximate result of the actions of Defendants

20

herein, Plaintiffs are entitled to Damages according to proof, Punitive

21

Damages (from individual Defendants only), Plaintiffs reasonable attorneys

22

fees, Plaintiffs costs of suit incurred herein, and such other and further relief

23

as the Court deems just and proper.

24
25
26
27
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1
2

NINTH CLAIM FOR RELIEF


(Battery - Against Defendants PETRO, El MAHMOUD,
SOTO, GARCIA, the DISTRICT, SELPA, and DOES 1-10)

3
4
5
6

149. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 148, as though fully set forth herein.
150. Defendants PETRO, El MAHMOUD, SOTO, and GARCIA

intentionally committed acts which resulted in harmful or offensive contact

with the Plaintiffs person when they committed the acts described herein.

9
10
11
12
13

151. During the commission of the acts alleged herein, Plaintiffs did
not consent to the contact.
152. Defendants PETRO, El MAHMOUD, SOTO, GARCIAs
harmful or offensive contact caused injury or harm to Plaintiffs.
153. California Government Code section 820 provides that a public

14

employee is liable for injury caused by his act or omission to the same extent

15

as a private person.

16

154. California Government Code section 815.2 provides that a public

17

entity is liable for injury proximately caused by an act or omission of an

18

employee of the public entity within the scope of his or her employment.

19

155. The DISTRICT and SELPA, public entities, were at all relevant

20

times the employer of Defendants PETRO, El MAHMOUD, SOTO, and

21

GARCIA.

22

156. Defendants PETRO, El MAHMOUD, SOTO, and GARCIA

23

committed the acts described herein while acting within the scope of their

24

employment with the DISTRICT and/or SELPA of educating, disciplining,

25

and supervising Plaintiffs.

26
27

157. The DISTRICT and SELPA are therefore vicariously liable for
the actions of its employees acting within the scope of their employment.

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158. As a direct and proximate result of the actions of Defendants

herein, Plaintiffs are entitled to Damages according to proof, Punitive

Damages (from individual Defendants only), Plaintiffs reasonable attorneys

fees, Plaintiffs costs of suit incurred herein, and such other and further relief

as the Court deems just and proper.

6
7

TENTH CLAIM FOR RELIEF


(Assault - Against Defendants PETRO, El MAHMOUD,
SOTO, GARCIA, the DISTRICT, SELPA, and DOES 1-10)

8
9
10

159. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 158, as though fully set forth herein.

11

160. Defendants PETRO, El MAHMOUD, SOTO, and GARCIA

12

demonstrated the unlawful intent to inflict immediate injury on Plaintiffs when

13

they committed the acts described herein.

14

161. Defendants PETRO, El MAHMOUD, SOTO, and GARCIAs

15

acts described herein placed Plaintiffs in imminent apprehension of harmful or

16

offensive contact.

17
18
19

162. Defendants PETRO, El MAHMOUD, SOTO, and GARCIAs


harmful or offensive contact caused injury or harm to Plaintiffs.
163. California Government Code section 820 provides that a public

20

employee is liable for injury caused by his act or omission to the same extent

21

as a private person.

22

164. California Government Code section 815.2 provides that a public

23

entity is liable for injury proximately caused by an act or omission of an

24

employee of the public entity within the scope of his or her employment.

25

165. The DISTRICT and SELPA, public entities, were at all relevant

26

times the employer of Defendants PETRO, El MAHMOUD, SOTO, and

27

GARCIA.

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166. Defendants PETRO, El MAHMOUD, SOTO, and GARCIA

committed the acts described herein while acting within the scope of their

employment with the DISTRICT and/or SELPA of educating, disciplining,

and supervising Plaintiffs.

167. The DISTRICT and SELPA are therefore vicariously liable for

the actions of its employees acting within the scope of their employment.

168. As a direct and proximate result of the actions of Defendants

herein, Plaintiffs are entitled to Damages according to proof, Punitive

Damages (from individual Defendants only), Plaintiffs reasonable attorneys

10

fees, Plaintiffs costs of suit incurred herein, and such other and further relief

11

as the Court deems just and proper.

12

ELEVENTH CLAIM FOR RELIEF


(Intentional Infliction of Emotional Distress - Against Defendants PETRO, EL
MAHMOUD, SOTO, GARCIA, the DISTRICT, SELPA, and DOES 1-10)

13
14
15
16
17

169. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 168, as though fully set forth herein.
170. Defendants PETRO, El MAHMOUD, SOTO, and GARCIA

18

engaged in extreme and outrageous conduct when they intentionally

19

committed the acts described herein.

20

171. As a result of Defendants PETRO, El MAHMOUD, SOTO, and

21

GARCIAs extreme and outrageous conduct, Plaintiffs have suffered severe

22

emotional distress.

23

172. California Government Code section 820 provides that a public

24

employee is liable for injury caused by his act or omission to the same extent

25

as a private person.

26
27
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173. California Government Code section 815.2 provides that a public

entity is liable for injury proximately caused by an act or omission of an

employee of the public entity within the scope of his or her employment.

174. The DISTRICT and SELPA, public entities, were at all relevant

times the employer of Defendants PETRO, El MAHMOUD, SOTO, and

GARCIA.

175. Defendants PETRO, El MAHMOUD, SOTO, and GARCIA

committed the acts described herein while acting within the scope of their

employment with the DISTRICT and/or SELPA of educating, disciplining,

10
11

and supervising Plaintiffs.


176. The DISTRICT and SELPA are therefore vicariously liable for

12

the actions of its employees acting within the scope of their employment.

13

177. As a direct and proximate result of the actions of Defendants

14
15

herein, Plaintiffs have sustained Damages according to proof.


178. Defendants conduct constitutes a knowing disregard for the

16

rights and safety of Plaintiffs sufficient to justify an award of Punitive

17

Damages against the individual Defendants.

18
19

179. Plaintiffs are entitled to recover their reasonable attorneys fees


and costs.

23

TWELFTH CLAIM FOR RELIEF


(Negligent Supervision - Against Defendants PETRO, GOENS, SHIELDS,
EL MAHMOUD, SOTO, GARCIA, YALES, AMANCIO, KRIVAN,
MURILLO, GREEN, the DISTRICT, SELPA, MARTINEZ, in his Official
Capacity only, and DOES 1-10).

24

180. Plaintiffs incorporate, by reference herein, the allegations in

20
21
22

25
26
27

paragraphs 1 through 179, as though fully set forth herein.


181. Defendants had a legal duty to exercise reasonable care in
supervising special needs students in its charge pursuant to California

28

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Education Code section 44807 and may be held liable for injuries proximately

caused by the failure to exercise such care.

182. Plaintiffs are special needs students whom are particularly

vulnerable and dependent upon the Defendants, who, correspondingly, had

control over Plaintiffs welfare.

183. Defendants El MAHMOUD, SOTO, GARCIA, and PETRO

breached his/her duties by failing to exercise reasonable care in supervising

Plaintiffs while on the DISTRICT grounds when he/she inflicted the abuse

described herein.

10

184. Defendants SHIELDS, YALES, AMANCIO, MURILLO,

11

GREEN, and KRIVAN breached his/her duties by failing to exercise

12

reasonable care in supervising Plaintiffs while on the DISTRICT grounds

13

during the abuse described herein.

14

185. The DISTRICT, SELPA, and MARTINEZ breached their duties

15

to Plaintiffs when they failed to supervise Plaintiffs and their employees while

16

Plaintiffs were on the DISTRICT grounds during the abuse described herein

17

and failed to ensure their teachers and classroom aides were adequately trained

18

and provided proper supervision.

19

186. Defendants were aware of the probable dangerous consequences

20

of their conduct, and willfully and deliberately failed to avoid those

21

consequences. Defendants knew, or should have known, it was highly

22

probable that harm would result from their actions described herein.

23

187. California Government Code section 820 provides that a public

24

employee is liable for injury caused by his act or omission to the same extent

25

as a private person.

26
27
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188. California Government Code section 815.2 provides that a public

entity is liable for injury proximately caused by an act or omission of an

employee of the public entity within the scope of his or her employment.

189. The DISTRICT and SELPA, public entities, were at all relevant

times the employer of Defendants PETRO, GOENS, SHIELDS, El

MAHMOUD, SOTO, GARCIA, YALES, AMANCIO, MURILLO, GREEN,

and KRIVAN.

190. Defendants PETRO, GOENS, SHIELDS, El MAHMOUD,

SOTO, GARCIA, YALES, AMANCIO, MURILLO, GREEN, and KRIVAN

10

committed the acts described herein while acting within the scope of their

11

employment with the DISTRICT and/or SELPA of educating, disciplining,

12

and supervising Plaintiffs.

13
14
15

191. The DISTRICT and SELPA are therefore vicariously liable for
the actions of its employee acting within the scope of their employment.
192. As the direct and proximate result of Defendants negligence,

16

Plaintiffs suffered and continue to suffer physical abuse and severe emotional

17

distress.

18
19

193. As a direct and proximate result of the actions of Defendants


herein, Plaintiffs are entitled to Damages according to proof.

23

THIRTEENTH CLAIM FOR RELIEF


(Negligence - Against PETRO, GOENS, SHIELDS, El MAHMOUD, SOTO,
GARCIA, YALES, AMANCIO, MURILLO, GREEN, and KRIVAN, the
DISTRICT, SELPA, MARTINEZ, in his Official Capacity only, and
DOES 1-10).

24

194. Plaintiffs incorporate, by reference herein, the allegations in

20
21
22

25

paragraphs 1 through 193, as though fully set forth herein.

26
27
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195. California law has long imposed on school authorities a duty to

supervise at all times the conduct of children on school grounds and to enforce

those rules and regulations necessary for their protection.

196. As set forth extensively above, Defendants breached their duties,

statutory and otherwise, to provide Plaintiffs with a learning environment free

from abuse.

197. Defendants were aware of the probable dangerous consequences

of their conduct, and willfully and deliberately failed to avoid those

consequences. Defendants knew, or should have known, it was highly

10
11

probable that harm would result from their actions described herein.
198. As the actual and proximate cause of Defendants negligence,

12

Plaintiffs suffered and continue to suffer physical abuse and severe emotional

13

distress.

14

199. California Government Code section 820 provides that a public

15

employee is liable for injury caused by his act or omission to the same extent

16

as a private person.

17

200. California Government Code section 815.2 provides that a public

18

entity is liable for injury proximately caused by an act or omission of an

19

employee of the public entity within the scope of his or her employment.

20

201. The DISTRICT and SELPA, public entities, were at all relevant

21

times the employer of Defendants PETRO, GOENS, SHIELDS, El

22

MAHMOUD, SOTO, GARCIA, YALES, AMANCIO, MURILLO, GREEN,

23

and KRIVAN.

24

202. Defendants PETRO, GOENS, SHIELDS, El MAHMOUD,

25

SOTO, GARCIA, YALES, AMANCIO, MURILLO, GREEN, and KRIVAN

26

committed the acts described herein while acting within the scope of his/her

27
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employment with the DISTRICT and/or SELPA of educating, disciplining,

and supervising Plaintiffs.

3
4
5
6
7
8

203. The DISTRICT and SELPA are therefore vicariously liable for
the actions of its employee acting within the scope of his/her employment.
204. As a direct and proximate result of the actions of Defendants
herein, Plaintiffs have and continue to sustain Damages according to proof.
FOURTEENTH CLAIM FOR RELIEF
(Violation of California Education Code 200, 201, 220, and 260 et seq. Against MARTINEZ in his Official Capacity only)

9
10
11
12
13
14

205. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 204, as though fully set forth herein.
206. Plaintiffs are individuals with disabilities within the meaning of
Section 220 of the California Education Code.
207. Defendants the DISTRICT and SELPA receive financial

15

assistance from the State of California sufficient to invoke the coverage of

16

sections 220 and 260, et seq., of the California Education Code.

17

208. By his actions or inactions in failing to enact an adequate formal

18

or informal policy to ensure that the DISTRICT is providing a learning

19

environment free from discrimination on the basis of disability as provided in

20

California Education Code section 220, Defendant MARTINEZ denied

21

Plaintiffs rights under Sections 200, 201, 220, and 260, et seq., of the

22

California Education Code and the regulations promulgated thereunder.

23

209. Plaintiffs have no adequate remedy at law. Unless the relief

24

requested herein is granted, Plaintiffs will suffer irreparable harm in that they

25

will continue to be denied a learning environment free from discrimination on

26

the basis of disability as provided in California Education Code section 220.

27
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210. As a proximate cause of the actions of Defendants herein,

Plaintiffs are entitled to an order and judgment enjoining Defendants from

violating Plaintiffs rights under California Education Code sections 200, 201,

220, and 260, et seq., a Declaration that Defendants actions or omissions

violate Plaintiffs rights under California Education Code sections 200, 201,

220, and 260, et seq., and reasonable attorneys fees and costs.

7
8
9
10

FIFTEEN CLAIM FOR RELIEF


(Violation of the Equal Protection Clause of the California Constitution,
Article I, Section 7(a) & Article IV Section 16(a) - Against PETRO,
GOENS, SHIELDS, El MAHMOUD, SOTO, GARCIA, YALES,
AMANCIO, MURILLO, GREEN, KRIVAN, the DISTRICT, SELPA,
MARTINEZ, in his Official Capacity only, and DOES 1-10)

11
12
13
14

211. Plaintiffs incorporate, by reference herein, the allegations in


paragraphs 1 through 210, as though fully set forth herein.
212. Defendants actions have violated and continue to violate

15

Plaintiffs right not to be deprived of equal protection of the laws under

16

California Constitution, Article I, Section 7(a) & Article IV Section 16(a), in

17

that Plaintiffs, who are students with disabilities, are either not provided

18

programs, services, and activities that are provided to non-disabled students,

19

or are provided programs, services, and activities that are not equal to, and are

20

inferior to, the services provided to students that are not physically disabled.

21

Plaintiff students in fact were abused because of their disabilities, which

22

amounts to disability discrimination.

23

213. Defendants PETRO, GOENS, SHIELDS, El MAHMOUD,

24

SOTO, GARCIA, YALES, AMANCIO, MURILLO, GREEN, and KRIVAN

25

committed the acts described herein while acting within the scope of his/her

26

employment with the DISTRICT and/or SELPA of educating, disciplining,

27

and supervising Plaintiffs.

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214. The DISTRICT and SELPA are also therefore vicariously liable

for the actions of its employee acting within the scope of his/her employment.

215. As a proximate cause of the actions of Defendants herein,

Plaintiffs are entitled to an order and judgment enjoining Defendants from

violating Plaintiffs rights to equal protection under the California Constitution

and a Declaration that Defendants actions or omissions violate Plaintiffs

rights to equal protection under the California Constitution.

WHEREFORE, Plaintiffs pray for relief as follows:


PRAYER FOR RELIEF

9
10

1.

For an order and judgment enjoining Defendants from violating

11

the Americans with Disability Act; Section 504 of the

12

Rehabilitation Act of 1973; California Civil Code sections 51, et

13

seq., California Civil Code sections 54, et seq., California

14

Government Code section 11135, et seq., California Education

15

Code sections 200, 201, 220, and 260, et seq., the California

16

Constitution, and the United States Constitution;

17

2.

For a Declaration that the POMONA UNIFIED SCHOOL

18

DISTRICTS policies, practices, or procedures concerning the

19

improper discipline/behavior management of children with

20

disabilities denied their right to full and equal access to, and use

21

and enjoyment of, the facilities, programs, services, and activities

22

of POMONA UNIFIED SCHOOL DISTRICT as required by

23

law;

24

3.

For a Declaration that Defendants actions or omissions violate

25

Plaintiffs rights to substantive due process under the Constitution

26

of the United States;

27
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4.

For a Declaration that Defendants actions or omissions violate

Plaintiffs rights to equal protection under the Constitution of the

United States;

5.

For a Declaration that Defendants actions or omissions violate

Plaintiffs rights under the Fourth Amendment to the Constitution

of the United States;

6.

For a Declaration that Defendants actions or omissions violate

Plaintiffs rights under the Equal Protection Clause of the

California Constitution;

10

7.

For damages according to proof;

11

8.

For punitive damages (against individual Defendants only);

12

9.

For Plaintiffs reasonable attorneys fees;

13

10.

For costs of suit incurred herein; and

14

11.

For such other and further relief as the Court deems just and
proper.

15
16
17

Dated: October 7, 2015

PILLSBURY WINTHROP SHAW PITTMAN LLP

18

By:

19

/s/ Christine A. Scheuneman


Christine A. Scheuneman

20
21

Dated: October 7, 2015

DISABILITY RIGHTS LEGAL CENTER

22
23

By:

24
25
26
27

/s/ Elizabeth Eubanks


Elizabeth Eubanks
Attorneys for Plaintiffs

ATTESTATION: The filer attests that concurrence in the filing of this


document has been obtained from the signatories thereto.

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JURY DEMAND

1
2

Plaintiffs hereby demand a jury trial.

3
4
5

Dated: October 7, 2015

PILLSBURY WINTHROP SHAW PITTMAN LLP

6
7

By:

8
9
10

Dated: October 7, 2015

/s/ Christine A. Scheuneman


Christine A. Scheuneman

DISABILITY RIGHTS LEGAL CENTER

11
12

By:

13
14

/s/ Elizabeth Eubanks


Elizabeth Eubanks
Attorneys for Plaintiffs

15
16
17

ATTESTATION: The filer attests that concurrence in the filing of this

18

document has been obtained from the signatories thereto.

19
20
21
22
23
24
25
26
27
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